Appeals court upholds Barry's drug conviction

WASHINGTON -- A federal appeals court, brushing asid complaints of racial bias, upheld yesterday the cocaine conviction of former Washington Mayor Marion S. Barry Jr. but said that the six-month jail term he received must be reconsidered because of errors the judge made in sentencing him.

Mr. Barry was convicted last August of a single misdemeanor count of cocaine possession after a 10-week trial that inflamed local racial tensions and attracted national attention. The jury, reflecting the divisions in the community, acquitted him of a second possession charge but deadlocked on 12 other drug-related counts of possession, conspiracy and perjury, resulting in a mistrial on those charges.

U.S. District Judge Thomas Penfield Jackson then sentenced Mr. Barry to six months in jail, a year's probation and a $5,000 fine.

The three-judge panel of the U.S. Circuit Court of Appeals said yesterday that Judge Jackson was unclear in his use of federal sentencing guidelines and incorrect in deciding that Mr. Barry had obstructed justice in the case.

But the court denied Mr. Barry's request that another judge levy the new sentence. Judge Jackson is expected to resentence Mr. Barry within the next three months.

The result for Mr. Barry could be a lighter jail term, or no jail term at all, and he apparently took heart from that possibility as he spoke to reporters yesterday. "I'm pleased and encouraged by this ruling," he said.

But the appeals court's ruling, contained in a 29-page opinion written by Judge Patricia Wald, also left room for Judge Jackson to levy an identical sentence, as long as he clarifies his methodology and doesn't penalize Mr. Barry for obstruction of justice.

Jay B. Stephens, the U.S. attorney for Washington, focused on that aspect of the decision in his comments, saying in a one-page statement, "The court's decision provides ample support for the trial judge to resentence Mr. Barry to the six-

Since the trial, Mr. Barry's fortunes have continued to fade. He decided not to run for re-election, choosing instead to try for one of two at-large seats on the District of Columbia City Council. But he finished a distant third in the voting, and he is now said to be pursuing private business opportunities.

His attorneys sought to overturn his conviction on two grounds. First, they said, the evidence against him was too imprecise. They pointed out that the lone witness to the alleged possession, a friend of Mr. Barry's named Doris Crenshaw, could not remember which month she used cocaine with him, although the charge specified that he had used the drug "on or about" Nov. 7-10.

The court said that other evidence -- such as phone records, Ms. Crenshaw's previous testimony before the grand jury and other recollections that helped narrow down the possible dates -- was sufficient to overcome the uncertainty.

The court also rejected Mr. Barry's claims that Judge Jackson was biased against him. Mr. Barry's attorneys had argued that Judge Jackson betrayed his bias by, among other things, barring Black Muslim leader Louis Farrakhan from the courtroom during the trial, after saying that Mr. Farrakhan's presence "would be potentially disruptive."

The appeals court had already chastised Judge Jackson for barring Mr. Farrakhan, ruling in a quickly delivered opinion during the trial that the judge should reconsider. Judge Jackson responded by admitting Mr. Farrakhan to the courtroom.

But that didn't mean that Judge Jackson was biased against Mr. Barry, the court ruled, and the opinion yesterday concluded, "The record in no way supports Barry's claims that the court harbored a racial or personal bias against Barry or that the court based Barry's sentence on anything other than what it learned during its participation in the case."